Affirmed and Opinion Filed March 27, 2015.

S

In The

Court of Appeals

Fifth District of Texas at Dallas

No. 05-13-00732-CV

ALBERT G. HILL III, Appellant

V.

ALBERT G. HILL JR., AND DANIEL L. JACKSON, RECEIVER FOR

HILL 3 INVESTMENTS, LLC, Appellees

On Appeal from the 68th Judicial District Court

Dallas County, Texas

Trial Court Cause No. DC-11-04523

OPINION

Before Justices Fillmore, Stoddart, and Whitehill1

Opinion by Justice Stoddart

This is an appeal from a final summary judgment ordering the termination and winding 

up of a limited liability corporation. Albert G. Hill III argues: (1) the evidence raised a genuine 

issue of material fact about whether the receiver for the company properly calculated the 

members’ capital accounts; (2) the trial court abused its discretion by denying his motion for 

continuance of the summary judgment hearing; and (3) the trial court abused its discretion by 

assessing all of the receiver’s postjudgment fees and expenses against him. By petition for writ 

of mandamus, Hill III argues the trial court lacked the power to approve the receiver’s 

applications for fees incurred after judgment was rendered discharging the receiver. We 

 1 Justice Kerry P. FitzGerald was a member of the original panel and participated in the submission of this 

case; however, he did not participate in this opinion due to his retirement. Justice Bill Whitehill has reviewed the 

record and the briefs in this case. See TEX. R. APP. P. 41.1(a).
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consolidated Hill III’s petition for writ of mandamus with this appeal.

For the reasons discussed below, we conclude the summary judgment evidence did not 

raise a genuine issue of material fact and the trial court did not abuse its discretion by denying 

Hill III’s motion for continuance or by assessing all of the receiver’s postjudgment fees against 

Hill III. We also conclude the trial court had jurisdiction to grant the receiver’s postjudgment fee 

applications. Accordingly, we affirm the trial court’s judgment and deny the petition for writ of 

mandamus.

BACKGROUND

A. The Prior Suit

Hill 3 Investments, LLC (the Company) is jointly owned by Albert G. Hill Jr. and 

Hill III. For several years, The Company, the Hills, and other parties were involved in litigation 

in both federal and state courts. In the state court litigation (the First Lawsuit), the parties 

litigated several issues primarily related to debts Hill III owed to the Company. The trial court in 

the First Lawsuit appointed a receiver over the Company in 2008. Approximately two years 

later, the parties reached a global settlement and agreed to dismiss with prejudice all related 

litigation, including the claims between Hill III and Hill Jr. involving the Company pending in 

the First Lawsuit. 

Because they relate to the questions presented in this appeal, we briefly describe the 

proceedings in the First Lawsuit. Pursuant to the global settlement and a court order, Hill III 

paid the receiver the amount of the debt he owed the Company and the receiver then paid the 

Compahny’s primary obligations, leaving approximately $285,000 in cash in the Company. The 

receiver filed a final report detailing these transactions in the First Lawsuit on December 10, 

2010. The capital accounts shown in the final report indicated Hill III had 48% and Hill Jr. had 
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52% of the total member capital in the Company.2

 The final report will be discussed in more 

detail below. 

Fourteen months after the final report, Hill Jr. filed an application for distribution of 50%

of the funds in the Company’s bank account. The trial court granted the application on February 

7, 2011. The order recited that after the receiver collected the primary assets of the Company

and paid the primary liabilities and the receiver’s approved fee applications, approximately 

$231,000 remained in the Company’s bank account. The order further recited that as a 50%

shareholder of the Company, Hill Jr. was entitled to 50% of the funds remaining in the 

Company’s bank account. The receiver was ordered to disburse that amount to Hill Jr.

On April 8, 2011, the trial court signed an agreed order dismissing with prejudice all 

claims that were raised or could have been raised in the First Lawsuit. The order of dismissal 

provided that it did not preclude the filing of a lawsuit by either Hill III or Hill Jr. that was solely 

limited to terminating and winding up the business of the Company under section 11.314 of the 

business organizations code. TEX. BUS. ORGS. CODE ANN. § 11.314 (West 2012). No party 

appealed the final judgment in the First Lawsuit.

B. The Current Suit

On April 11, 2011, Hill Jr. filed this suit to terminate and wind up the Company. (The 

same trial judge presided over both lawsuits.) Hill Jr. alleged the Company could no longer 

operate because it was hopelessly deadlocked and the receiver had completed his work except for 

filing tax returns and terminating and winding up the Company. Hill III answered and requested 

access to the Company’s books and records and an accounting. Over the next year, the parties 

engaged in discovery and presented several discovery disputes to the trial court.

 2 The balances of the capital accounts of both members exceeded $850,000. It is undisputed that the 

members were equal shareholders of the Company.
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On April 18, 2012, Hill Jr. and the receiver filed the joint motion for summary judgment 

and to dissolve the Company that is the subject of this appeal. At Hill III’s request, the trial 

court rescheduled the summary judgment hearing to August 20, 2012, then to October 15, 2012, 

and finally to December 3, 2012. Hill III filed a response to the motion on November 27, 2012,

and argued there was a genuine issue of material fact because member capital in the Company 

had not been adequately and properly stated in the receiver’s final report filed in the First 

Lawsuit approximately two years earlier. After the summary judgment hearing, the trial court 

granted the motion in part, but permitted the parties to file additional briefing and evidence on 

the issue of the calculation of the members’ capital accounts and set a hearing for December 21, 

2012.

Shortly afterwards, Hill III terminated the services of his attorney and instructed the 

attorney to file a motion to withdraw, which was done on December 7, 2012. Hill III then filed a 

motion for continuance of the summary judgment hearing. The motion for continuance was later 

supplemented by new counsel, based on the request of Hill III’s expert for additional supporting 

documents following a court-ordered meeting with the receiver. The trial court denied the 

motion for continuance. 

At the December 21, 2012 hearing, the trial court signed an order granting the motion for 

summary judgment and an order closing all outstanding issues. The trial court found it was not 

reasonably practicable to carry on the business of the Company in conformity with its governing 

documents. The court ordered the receiver to wind up and terminate the Company and distribute 

to Hill III any assets remaining after payment of court-ordered receiver fees up to the amount 

previously distributed to Hill Jr. in the First Lawsuit. After that distribution, any remaining 

assets of the Company would be split equally between Hill Jr. and Hill III. The receiver was also 

instructed to file a final fee application.
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The trial court signed a final judgment on February 6, 2013, finding the receiver had 

completed winding up and terminating the Company, distributed the remaining assets of the 

Company pursuant to the Court’s prior orders, and filed a certificate of termination with the 

secretary of state. The judgment recited that the receiver filed a final fee application, which had 

been granted. The trial court further determined:

that the receivership will no longer continue upon the signing of this Judgment, 

and Daniel L. Jackson is hereby released of all duties as Receiver in the above

captioned matter, as well as in the prior lawsuit, Cause No. 08-2578, except for 

payment of fees approved under the final fee application; filing the final tax 

returns . . .; payment of any applicable taxes (if any, none is expected); updating 

the books and records; and, distributing the books and records of Hill 3 

Investments as provided herein.

Hill III then filed a motion for reconsideration and motion for new trial on March 8, 

2013. The receiver and Hill Jr. filed a joint response to the motion. The receiver also filed an

application for fees and expenses incurred for filing the response. The trial court denied the 

motion after a hearing and granted the receiver’s fee application within thirty days of overruling 

the motion for new trial.3

 This appeal followed.

DISCUSSION

A. Summary Judgment

Hill III’s first issue contends the summary judgment evidence raised a genuine issue of 

material fact about whether the receiver correctly calculated the members’ capital accounts in the

final report filed in the First Lawsuit. In their reply, Hill Jr. and the receiver argued Hill III’s 

expert failed to account for additional contributions made by Hill Jr. and the calculation of the 

capital accounts was not material because that issue was resolved in the First Lawsuit. On 

appeal, Hill Jr. and the receiver also argue the expert’s affidavit did not raise a genuine issue of 

 3 The receiver filed two additional fee applications relating to fees incurred during this appeal. The trial 

court granted both applications.
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material fact because it was speculative and conclusory.

We review the trial court’s summary judgment de novo. Provident Life & Accident Ins. 

Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). We apply the well-established standards for 

reviewing summary judgments. See TEX. R. CIV. P. 166a(c); Nixon v. Mr. Property Mgmt. Co., 

690 S.W.2d 546, 548–49 (Tex. 1985). The summary judgment movant must show there is no 

genuine issue as to any material fact and the moving party is entitled to judgment as a matter of 

law on the issues expressly set out in the motion. TEX. R. CIV. P. 166a(c). If the movant meets 

its burden, the burden shifts to the non-movant to respond and present evidence raising a genuine 

issue of material fact. See Rhone–Poulenc, Inc. v. Steel, 997 S.W.2d 217, 222–23 (Tex. 1999).

Affidavits consisting only of conclusions are insufficient to raise an issue of fact to defeat 

a motion for summary judgment. Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984). 

Summary judgment evidence raising only a mere suspicion or surmise of a fact in issue does not 

show a genuine issue of material fact. Selz v. Friendly Chevrolet, Ltd., 152 S.W.3d 833, 837 

(Tex. App.—Dallas 2005, no pet.). A contention that an affidavit is conclusory raises a defect of 

substance and may be raised for the first time on appeal. See Brown v. Brown, 145 S.W.3d 745, 

751 (Tex. App.—Dallas 2004, pet. denied); Rizkallah v. Conner, 952 S.W.2d 580, 587 (Tex. 

App.—Houston [1st Dist.] 1997, no writ). “A conclusory statement of an expert witness is 

insufficient to create a question of fact to defeat summary judgment.” McIntyre v. Ramirez, 109 

S.W.3d 741, 749–50 (Tex. 2003). An expert witness’s guesswork is not competent evidence to 

defeat a motion for summary judgment. See IHS Cedars Treatment Ctr., Inc. v. Mason, 143 

S.W.3d 794, 803 (Tex. 2004). 

A district court has jurisdiction to order the winding up and termination of a limited 

liability company if the court determines it is not reasonably practicable to carry on the entity’s 

business in conformity with its governing documents. TEX. BUS. ORGS. CODE ANN. § 11.314(2). 
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An entity in the process of winding up must apply and distribute its property to discharge or 

make provision for discharge of all of its liabilities and obligations. Id. § 11.053(a). After the 

entity has discharged or made adequate provision to discharge all of its liabilities and 

obligations, the entity must distribute the remainder of its property, in cash or in kind, to its 

“owners according to their respective rights and interests.” Id. § 11.053(c). 

Hill Jr. and the receiver presented summary judgment evidence that Hill Jr. and Hill III 

were each 50% owners of the Company, but could not agree on the manner in which the 

Company would conduct business. The Company’s organizational documents required a 

majority of the members to agree to conduct business. In addition, Hill Jr. and the receiver 

presented evidence the Company has no on-going business, no future plans to conduct business, 

and no ability to carry on the Company’s business in conformity with its governing documents. 

The receiver testified in his affidavit he had completed all Company matters except for winding 

up the Company, dissolving the Company, and making a final distribution of any remaining 

assets. The receiver stated that (1) all debts owed by the Company had been fully paid except for 

the receiver’s fees and attorney’s fees; (2) the Company’s only anticipated expense was 

preparation of the 2011 tax return and a final return on dissolution; (3) all existing receivables 

owed to the Company by any third party had been paid; and (4) the Company had no claims, 

causes of action, or counterclaims to pursue. 

Hill III does not dispute this evidence. He argues, however, there was an issue of 

material fact about whether the receiver properly accounted for and calculated the members’

capital accounts in the final report filed in the First Lawsuit. Hill III relied primarily on an 

affidavit of his accounting expert, Richard Claywell. 

In his affidavit, Claywell made general observations about the Company’s accounting 

records provided to him dating back to just before Hill Jr. acquired his interest in the Company,
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some four years before the receiver was appointed. Claywell then looked at the receiver’s final 

report filed in the First Lawsuit. That report included a balance sheet dated May 31, 2008, 

approximately the date the receiver was appointed, a receipts and disbursement report from May 

31, 2008 to December 9, 2010, and a balance sheet dated December 9, 2010, evidencing the 

property remaining in the receiver’s control.

Claywell prepared a balance sheet as of May 31, 2008, based on the accounting records 

provided to him by Hill Jr. Claywell’s balance sheet showed Hill Jr.’s capital account was about 

$25,000 less than the capital account shown on the 2008 balance sheet attached to the receiver’s 

final report. Claywell stated the documents he reviewed did not explain this discrepancy.

Claywell noted the 2008 balance sheet attached to the receiver’s final report showed Hill 

III with 52% and Hill Jr. with 48% of the total member capital. The 2010 balance sheet showed 

Hill III with 48% and Hill Jr. with 52% of the total member capital. Claywell opined that 

because the members were equal owners of the Company, changes in their respective capital 

accounts should remain the same unless there were additional contributions or withdrawals of 

capital by one or the other member. Claywell’s review did not explain the change in the relative 

percentages of capital of the two members.

Claywell also reviewed records produced by the receiver’s tax accounting firm, Weaver 

and Tidwell, and concluded those records contained numerous journal entries to cash. Claywell 

stated this was not a normal way of recording expenses and it is not generally good accounting 

practice to rely primarily on journal entries without underlying transaction documents. Claywell 

said he requested the underlying transaction documents, but was told they were not provided. 

Claywell concluded the Weaver and Tidwell records were not reliable without the underlying 

documents. He did not explain how the Weaver and Tidwell records related to the members’ 

capital accounts.
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Hill III also submitted a declaration4 by Claywell made after a meeting between the 

receiver and Claywell before the final summary judgment hearing. In this declaration, Claywell 

explained that many transactions in the Company’s software accounting records provided by the 

receiver were booked as general journal entries and could not be verified without original source 

documents. Claywell stated it was generally recognized and accepted in the accounting 

profession that accounting records heavily based on journal entries are suspect and require 

examination of original source documents to validate the entries. According to Claywell, the 

receiver brought a binder to the meeting containing the receiver’s work papers and backup 

documents. Claywell requested the receiver produce the supporting documents, but the receiver 

refused to do so without a court order. Claywell described the additional documents he needed 

to verify the member capital account entries and concluded that without these documents Hill III 

would be unable to confirm the validity of those entries and unable to arrive at a correct 

calculation of the member capital accounts.

Hill III argues this evidence raises a genuine issue of material fact about the receiver’s 

calculation of the capital accounts. However, Claywell merely noted he was unable to verify all 

of the Company’s accounting records. His calculations may have differed from the receiver’s 

calculations, but the fact that Claywell could not verify the capital accounts from records 

provided to him does not raise a genuine issue of material fact; such evidence merely allows the 

trier of fact to speculate about whether the capital accounts are accurate or not. Claywell’s 

affidavit and declaration give rise to no more than a surmise or suspicion that the accounting 

might be different if additional documents were reviewed.5

 But summary judgment evidence 

 4 An unsworn declaration complying with statute may be used in lieu of an affidavit required by rule. See 

TEX. CIV. PRAC. & REM. CODE ANN. § 132.001 (West Supp. 2014).

5 Hill III argues that evidence a defendant did not comply with applicable standards of accounting practice 

raises a genuine issue of fact, citing Ling v. BDA&K Business Services, Inc., 261 S.W.3d 341, 348–49 (Tex. App.—
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that raises no more than a surmise or suspicion of a fact in issue does not show a genuine issue of 

material fact exists to defeat summary judgment. Selz, 152 S.W.3d at 837.

In addition, Claywell’s speculations about the calculation of the capital accounts are not 

material to the distribution of the remaining assets of the Company under the facts of this case. 

It is undisputed that the receiver collected all of the assets of the Company and paid all of its 

obligations in the First Lawsuit. In that proceeding, the trial court ordered half of the remaining 

assets distributed to Hill Jr. The Hill Jr. distribution order in the First Lawsuit merged into the 

final judgment in that case and is now final. See Webb v. Jorns, 488 S.W.2d 407, 409 (Tex. 

1972) (interlocutory order merges into final judgment and becomes final for purposes of appeal). 

The order of dismissal with prejudice in the First Lawsuit was an adjudication on the merits. See 

Mossler v. Shields, 818 S.W.2d 752, 754 (Tex. 1991) (“[I]t is well established that a dismissal 

with prejudice functions as a final determination on the merits.”). That order was not appealed 

and is now final; it is not subject to a collateral attack in this proceeding. See Browning v. 

Prostok, 165 S.W.3d 336, 346 (Tex. 2005) (collateral attacks on final judgments are generally 

disallowed because of the policy to give finality to judgments); Hydroscience Techs., Inc. v. 

Hydroscience, Inc., 401 S.W.3d 783, 797 (Tex. App.—Dallas 2013, pet. denied) (evidence 

regarding stock ownership did not raise fact issue where evidence would allow party to 

collaterally attack prior final judgment based on the parties’ settlement agreement). To the 

extent Hill III seeks to alter the distribution of the Company’s assets as ordered by the trial court 

in the First Lawsuit, he is making an improper collateral attack on the judgment in that case. See 

PNS Stores, Inc. v. Rivera, 379 S.W.3d 267, 272 (Tex. 2012) (collateral attack seeks to avoid 

binding effect of judgment in order to obtain specific relief that the judgment currently impedes).

 Dallas 2008, no pet.). Ling is not applicable because the issue in that case was whether an accountant breached the 

standard of care in an accounting malpractice case.
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Hill III argues the calculation of the capital accounts is material because it would affect 

the ultimate outcome of the case and is part of the accounting required by the winding-up 

process. We disagree. The summary judgment order in this case ordered that Hill III receive all 

of the remaining assets of the Company after payment of the receiver’s fees and expenses6 up to 

the amount distributed to Hill Jr. in the First Lawsuit. Hill III contends that if the receiver 

credited his capital account with certain amounts identified by Claywell, the corrections “could 

have resulted in a credit balance in Hill III’s capital account that exceeded Hill Jr.’s, and that 

potentially would have been distributable upon winding up of the Company.” But Hill III 

presented no evidence of additional assets available to make that distribution. Under the trial 

court’s final judgment, Hill III was already receiving all of the remaining assets of the Company 

up to the amount previously distributed to Hill Jr. and there is no evidence in the record that the 

Company had assets available to distribute even that amount. Indeed, the receiver’s final 

prejudgment fee application indicated that all of the remaining assets in the Company had been 

exhausted to pay the expenses of the receivership.7

Claywell’s affidavit and declaration did not raise a genuine issue of material fact. See 

Henning v. OneWest Bank FSB, 405 S.W.3d 950, 957 (Tex. App.—Dallas 2013, no pet.) (fact is 

material if it affects the ultimate outcome of the lawsuit under governing law). The affidavit and 

declaration fail to state any opinion or evidence material to the issue before the trial court: 

whether Hill Jr. and the receiver were entitled to an order for the winding up and termination of 

the Company under section 11.314 of the business organizations code.

 6 See Jordan v. Burbach, 330 S.W.2d 249, 252 (Tex. Civ. App.—El Paso 1959, writ ref’d n.r.e.) (fees of 

receiver and his attorney are entitled to priority over other creditors of receivership); see also TEX. CIV. PRAC. &

REM. CODE ANN. § 64.051 (West 2008).

7 According to the receiver’s third and final prejudgment fee application and the order approving it, the 

remaining assets of the Company have been exhausted to pay Hill III’s share of the receiver’s fees and expenses 

during this litigation.
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We conclude Hill III’s summary judgment response and evidence did not raise a genuine 

issue of material fact in response to Hill Jr. and the receiver’s joint motion for summary 

judgment. Accordingly, the trial court did not err by granting summary judgment. We overrule 

Hill III’s first issue.

B. Motion for Continuance

Hill III’s second issue contends the trial court abused its discretion by denying his motion 

for a continuance of the December 21, 2012 final hearing on the motion for summary judgment. 

We review a trial court’s decision to grant or deny a motion for continuance of a 

summary judgment hearing for an abuse of discretion. See Cooper v. Circle Ten Council Boy 

Scouts of Am., 254 S.W.3d 689, 696 (Tex. App.—Dallas 2008, no pet.). A trial court abuses its 

discretion when it acts without reference to any guiding rules or principles. Downer v. 

Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985). In considering whether the 

trial court abused its discretion, we consider such factors as the length of time the case had been 

on file before the hearing, the materiality of the discovery sought, whether the party seeking the 

continuance exercised due diligence in obtaining the discovery, and what the party expected to 

prove. Cooper, 254 S.W.3d at 696.

This case was on file for just over a year when Hill Jr. and the receiver filed the joint 

motion for summary judgment. The record indicates several discovery disputes were presented 

to the court during that time period. After the summary judgment was filed, the hearing was 

rescheduled three times, each at Hill III’s request. When the motion was finally heard on 

December 3, 2012, the trial court again extended the hearing to December 21, 2012, solely on the 

capital accounts issue and permitted Hill III to obtain a copy of the receiver’s accounting 

software data and to meet with the receiver for one hour to discuss the Company’s books and 

records.
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Hill III again moved for continuance. In support of that motion, Claywell signed a 

declaration indicating he had difficulty opening the software data files produced by the receiver 

and could not meet with the receiver until shortly before the final hearing due to another 

commitment. Claywell’s later declaration (discussed above), prepared after the meeting with the 

receiver, stated the receiver refused to produce additional documents without a court order. The 

declaration, however, did not explain what Hill III expected to prove with the additional 

documents; it indicated only that additional documents were needed to verify the member capital 

accounts and that Hill III would be unable to arrive at a true and correct calculation of the capital 

accounts without those documents.

As discussed above, verification of the capital accounts would not result in a different 

distribution of the remaining assets of the Company because Hill III was already entitled to all of 

those assets after payment of the receiver’s fees and expenses. After the distribution of half of 

the Company’s remaining assets to Hill Jr. in the First Lawsuit, all that remained was the half 

allocated to Hill III.

Given the extensive history of this litigation, the trial court’s experience with this 

proceeding and with the First Lawsuit, the number of continuances granted, the limited 

materiality of the information sought, and the unclear nature of what Hill III expected to prove 

with the information, we cannot conclude on this record that the trial court abused its discretion 

by denying the motion for continuance. See Cooper, 254 S.W.3d at 696–97. We overrule Hill 

III’s second issue.

C. Postjudgment Receiver Fees and Expenses

Hill III’s third issue raises two arguments: (1) the trial court lacked power to authorize 

payment of the receiver’s postjudgment fees because the final judgment discharged the receiver; 

and (2) the trial court abused its discretion by charging all of the receiver’s postjudgment fees 
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against Hill III. Hill III’s petition for writ of mandamus argues the trial court’s orders granting 

the receiver’s second and third postjudgment fee applications are void because they were issued 

after the trial court lost plenary power over the final judgment.

The trial court’s final judgment in this lawsuit found that the receivership should 

terminate on the signing of the judgment and discharged the receiver of all duties except for 

certain specified actions. Within thirty days of the judgment, Hill III filed a motion for 

reconsideration of the summary judgment and for new trial. The receiver filed a joint response 

with Hill Jr. The next day, the receiver filed an application for payment of fees and expenses in 

responding to Hill III’s postjudgment motion. This was the first postjudgment fee application.

Initially, Hill III objected that the fee application was premature until after the court ruled 

on the motion for reconsideration and asked for at least seven days after that ruling to file a 

response to the fee application. However, in his supplemental objections to the fee application, 

Hill III argued the receiver had no authority to incur fees after the trial court rendered the final 

judgment, which discharged the receiver. After denying the motion for reconsideration and for 

new trial, the trial court granted the first postjudgment fee application on May 3, 2013, within the 

trial court’s plenary power8 over the final judgment. This order required Hill III to pay all of the 

fees and expenses covered by the postjudgment fee application.9

The trial court later granted the receiver’s second and third applications for fees and 

expenses incurred in this appeal. These orders were signed after plenary power over the final 

judgment had expired and both orders “confirm[] that the Receiver shall remain involved in both 

 8 Hill III timely filed a motion for new trial that was overruled by a written order signed on April 22, 2013. 

The trial court had plenary power to grant a new trial or to vacate, modify, correct, or reform the judgment until 

thirty days after that date or May 22, 2013. TEX. R. CIV. P. 329b(e).

9 Hill III does not challenge the trial court’s prejudgment orders approving the receiver’s fees and expenses. 

Before judgment, the trial court ordered those fees shared equally between Hill III and Hill Jr. Hill III’s share of the 

fees was paid from the remaining assets of the Company and Hill Jr. paid his share directly to the receiver.
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this lawsuit and the appeal while this Court’s Final Judgment is pending on appeal.” These 

orders also assessed all of the receiver’s fees and expenses against Hill III and are the subject of 

Hill III’s petition for writ of mandamus.

1. The trial court’s power to award fees

We begin with the first postjudgment fee application. Hill III argues the trial court’s 

power over the receivership ended with the final judgment because that judgment discharged the 

receiver and did not retain any jurisdiction over the receivership. We disagree. 

First, Hill III recognizes that a trial court has plenary power to grant a new trial or to 

vacate or modify a final judgment within thirty days after the judgment is signed or within thirty 

days after all timely motions for new trial or postjudgment relief are overruled. See TEX. R. CIV.

P. 329b(d), (e). The trial court granted the first postjudgment fee application within thirty days 

of denying the motion for new trial. Thus, the trial court had jurisdiction at the time it granted 

the first postjudgment fee application.

Second, the terms of the final judgment discharging the receiver included specific acts 

that were to occur after the judgment, such as payment of fees approved in the final 

(prejudgment) fee application, filing tax returns, payment of any taxes, updating the Company 

books, and distributing the Company books as directed in the judgment. Thus, the trial court in 

fact retained jurisdiction over the receiver in the final judgment. The trial court had the power to 

extend or modify the discharge of the receiver in light of new developments after the final 

judgment. See Reardon v. White, 87 S.W. 365, 367 (Tex. Civ. App.—Austin 1905, writ ref’d)

(order discharging receiver was amended at next term of court to continue receivership until final 

disposition of pending suits against the receiver).10 Thus, when the receiver requested additional 

 10 Hill III cites no authority to support the proposition that an order discharging a receiver can never be

vacated or modified by a later order, and we have found no support for the proposition. See Chimp Haven, Inc. v. 

Primarily Primates, Inc., 281 S.W.3d 629, 633 (Tex. App.—San Antonio 2009, no pet.) (recognizing that probate 
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fees for responding to Hill III’s motion for reconsideration and for new trial, the trial court had 

the power to grant that relief. 

Regarding the second and third postjudgment fee applications, Hill III argues the orders 

granting the applications were void because the trial court lost plenary power over the final 

judgment in the main case and did not retain any jurisdiction over the receiver in the final 

judgment. 

The parties have cited several authorities for general propositions relating to the issue, but 

none are directly on point. However, the authorities do give us guidance in resolving the issue. 

The duration of a receivership and its termination are within the sound discretion of the 

trial court. Gilles v. Yarbrough, 224 S.W.2d 720, 722 (Tex. Civ. App.—Fort Worth 1949, no 

writ) (trial court did not abuse its discretion by denying motion to terminate receivership long 

after judgment in main case became final). Even after a receivership ends, the trial court has 

jurisdiction to conduct proceedings necessary to conclude the receivership and discharge the 

receiver. See Bayoud v. Bayoud, 797 S.W.2d 304, 310 (Tex. App.—Dallas 1990, writ denied)

(“[h]owever and whenever a receivership ends, the trial court must conduct the necessary 

proceedings to discharge the receiver,” quoting Humble Exploration Co. v. Walker, 641 S.W.2d 

941, 945 (Tex. App.—Dallas 1982, no writ)). This jurisdiction exists even if the receivership is 

vacated on appeal or the duration of a corporate receivership extends beyond the maximum 

duration allowed by statute. See id.

Texas has long recognized the independent and ongoing nature of receivership 

proceedings. As this Court has said, “A receivership is not like an ordinary lawsuit in which the 

issues may be drawn by the pleadings as soon as discovery is complete, and then promptly tried 

 court that appointed receiver, after discharging the receiver, corrected and modified the order of discharge to 

expressly retain jurisdiction over the receivership property).
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to a final judgment, which may then be enforced by execution.” Bergeron v. Session, 554 

S.W.2d 771, 774–75 (Tex. Civ. App.—Dallas 1977, no writ). By way of example, discrete 

orders in receivership proceedings are an exception to the one-final-judgment rule. See Art Inst. 

of Chicago v. Integral Hedging, L.P., 129 S.W.3d 564, 570–71 (Tex. App.—Dallas 2003, no 

pet.). Those orders may be appealed even though final judgment has not been rendered in the 

main case. Id.; see also Huston v. F.D.I.C., 800 S.W.2d 845, 847 (Tex. 1990) (court order 

resolving discrete issue in connection with receivership is a final adjudication and appealable).

Furthermore, a trial court has jurisdiction to appoint a receiver even while the main case 

is on appeal. See Brock v. Kelly, 85 S.W.2d 274, 275 (Tex. Civ. App.—Texarkana 1935, no 

writ) (“It is true the district court lost jurisdiction of the issues involved in the main case by 

virtue of the appeal to this court, but it had the undoubted jurisdiction to appoint a receiver for 

the property involved in the main suit, should it become necessary and the facts justify it, while 

the main case was pending on appeal in this court.”); see also United N. & S. Oil Co. v. 

Meredith, 258 S.W. 550, 554 (Tex. Civ. App.—Austin 1923) (“It necessarily follows that so long 

as there is an appeal pending the controversy in the suit which is carried forward into the appeal 

is a cause of action pending, and the same right to a receiver, to protect the property in litigation, 

exists after judgment, and pending the appeal, as existed before judgment and pending the 

trial.”), aff’d, 272 S.W. 124 (Tex. Comm’n App. 1925, judgm’t adopted); Scales v. Grassman, 

261 S.W. 220, 222 (Tex. Civ. App.—Galveston 1924, writ ref’d) (although trial court lost 

jurisdiction over issues in main case while on appeal, it had jurisdiction to appoint receiver 

during pendency of appeal). 

In addition, even after issuing an order discharging a receiver, a trial court has power to 

continue the receivership if circumstances require. See Reardon, 87 S.W. at 367; see also Chimp 

Haven, Inc. v. Primarily Primates, Inc., 281 S.W.3d 629, 633 (Tex. App.—San Antonio 2009, no 
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pet.) (recognizing that appointing court modified its order discharging the receiver after the order 

was rendered). In Reardon, the receiver was discharged in October 1902 without any provision 

for a pending suit against the receiver. 87 S.W. at 367. At the next regular term of court in 

March 1903, the appointing court amended the order of discharge to continue the receivership 

until final disposition of the suits against the receiver. Id. On appeal of the plaintiff’s judgment 

against the receiver, the receiver argued the appointing court lacked jurisdiction to set aside the 

order discharging the receiver. The court of civil appeals rejected this argument stating, “[W]e 

are thoroughly convinced that at the regular term that followed the previous order the Circuit 

Court had jurisdiction, upon application properly made, to set aside that order and to retain the 

receiver within its jurisdiction, if circumstances satisfactory to the court were shown why this 

should be done.” Id. 

From these decisions, we see that orders resolving discrete issues in a receivership may 

be appealed even though the main case is not final, see Huston, 800 S.W.2d at 847, and 

judgments in the main case may be final even though a receivership continues, see Gilles, 224 

S.W.2d at 722. We also see that a trial court has jurisdiction to appoint a receiver even while the 

main case is pending on appeal. See Brock, 85 S.W.2d at 275. We reason from these authorities

that at least as long as the main case is on appeal, the trial court has jurisdiction to appoint, 

control, modify, or otherwise deal with a receivership related to the main case. Further, the trial 

court has power to modify an order discharging a receiver and to reinstate or authorize the 

receiver to act if new circumstances arise after the order discharging the receiver and while the 

main case is on appeal. See Chimp Haven, 281 S.W.3d at 633; Reardon, 87 S.W. at 367. 

Hill III relies primarily on the opinion in Bishop v. Smith, No. 09-08-00185-CV, 2009 

WL 5205362 (Tex. App.—Beaumont Dec. 31, 2009, no pet.) (mem. op.). Bishop was a 

complicated divorce proceeding where the wife’s mother also sued the husband and wife to 
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collect certain debts. Id. at *1. The final divorce decree in Bishop did not discharge the receiver; 

it ordered the receivership to continue in order to oversee the sale of a promissory note and 

distribution of the proceeds from the sale. Id. 

In Bishop, post-divorce actions of the parties frustrated the sale of the promissory note as 

contemplated in the original decree. Id. at *4. The trial court later confirmed a sale of the note at 

a significantly reduced price and ordered the parties to pay the receiver’s fees. Id. The mother 

objected to paying a portion of the receiver’s fees and argued the trial court lacked power to 

order the fees because it had lost plenary power over the final decree. Id. The court of appeals 

noted that the final decree did not discharge the receiver, but continued the receivership in order 

to sell the promissory note. Id. Thus, “even if the trial court had lost plenary power over most of 

the issues that had been resolved by the Final Decree, we disagree that the trial court no longer 

had power to award costs associated with the receivership.” Id. 

Hill III argues that unless the final judgment expressly reserves or retains jurisdiction 

over the receiver, as was done in Bishop, the trial court loses power over the receiver with the 

final judgment. However, Bishop does not address the issue before us because the trial court in 

that case did not discharge the receiver in the final decree. Thus, the court in Bishop was never 

called on to decide whether, after discharge, a receiver could apply for and be awarded fees 

incurred to address new developments in the case. Furthermore, nothing in the opinion in Bishop

supports the contention that an order discharging a receiver cannot be modified in light of later 

events. 

Hill III also relies on the opinion in Chimp Haven. The dispute in Chimp Haven was 

about ownership of retired research chimpanzees. 281 S.W.3d at 630. A Travis County probate 

court appointed a receiver for the chimpanzees. Id. at 631. However, the case on appeal was from 

a judgment of a Bexar County trial court in a separate proceeding. Id. at 630. The court of 
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appeals recognized that “following the discharge of the receiver,” the Travis County probate 

court issued a corrected order of dismissal with prejudice expressly stating it would “retain 

jurisdiction for purposes of winding up the affairs of the receivership.” Id. at 633. The court of 

appeals stated the rule that a court’s power over receivership property continues until either the 

court relinquishes its jurisdiction over the suit or the receiver is discharged and the property 

restored to the persons entitled to it. Id. Because the Travis County probate court expressly 

retained jurisdiction over the chimpanzees, the court of appeals concluded the Bexar County

court lacked jurisdiction to resolve the dispute regarding ownership of the chimpanzees. Id.

Although Chimp Haven is not on point to the case before us, it recognized that the court 

appointing the receiver had power to modify an order discharging the receiver if necessary. See 

id. The opinion states the Travis County probate court issued a corrected order of dismissal 

stating the probate court would retain jurisdiction for purposes of winding up the affairs of the 

receivership. Id. The probate court thus put the parties on notice that additional steps would be 

required to close the receivership. Id. Here, by issuing the orders granting the receiver’s 

postjudgment fee applications, the trial court put the parties on notice that additional proceedings 

would be necessary to resolve the appeal of the trial court’s final judgment and the court 

authorized the receiver’s fees incurred in those proceedings. Chimp Haven does not persuade us 

the trial court lacked jurisdiction to do so.

Hill III cites cases for the general proposition that perfection of an appeal terminates the 

trial court’s jurisdiction and transfers jurisdiction to the court of appeals. See Panhandle Constr. 

Co. v. Lindsey, 72 S.W.2d 1068, 1072 (Tex. 1934) (perfection of appeal, as a general rule, 

terminates authority of lower court); Custom Corporates, Inc. v. Sec. Storage, Inc., 207 S.W.3d 

835, 838 (Tex. App.—Houston [14th Dist.] 2006, no pet.) (orders issued outside a trial court’s 

plenary power are typically void because the court no longer has jurisdiction to act); In re 
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Brattain, No. 05-00-00175-CV, 2001 WL 8853, at *1 (Tex. App.—Dallas Jan. 4, 2001, no pet.)

(not designated for publication); Stein v. Frank, 575 S.W.2d 399, 400 (Tex. Civ. App.—Dallas 

1978, no writ) (trial court lost jurisdiction to deny contest to affidavit of inability to give appeal 

bond when appeal was perfected by posting of appeal bond). We do not disagree with this 

authority. However, none of the cases cited involved receiverships. Because of the unique nature 

of receiverships, see Bergeron, 554 S.W.2d at 775, and the established jurisdiction of a trial court 

to appoint a receiver even while the main case is on appeal, see Brock, 85 S.W.2d at 275, we do 

not consider these decisions controlling on this issue. 

Hill III asserts the receiver never requested authority to continue serving beyond the final 

judgment. We disagree. By filing the response to the motion for new trial and the first 

postjudgment fee application, the receiver sought authority to continue in the case and defend the 

order discharging him after Hill III challenged the final judgment. In granting the receiver’s fee 

application over Hill III’s objection,

11 the trial court effectively authorized the receiver to 

continue in the case and to incur additional fees and expenses.

Hill III also argues that although the trial court may have had the power to do so, the trial 

court did not reappoint the receiver after the discharge in the final judgment. As previously 

discussed, the trial court authorized the receiver to stay in the case by granting the first fee 

application. In approving the second and third fee applications, the trial court expressly 

authorized the receiver to continue to participate in the case. This was an exercise of the power 

Hill III concedes the trial court possessed.

Even if the trial court orders incorrectly failed to reappoint the receiver before 

 11 At the hearing on the motion for new trial, Hill III objected that the receiver did not have authority to 

incur fees responding to the motion for new trial because the final judgment terminated the receivership. In 

response, counsel for the receiver specifically said, “To the extent, Your Honor, I need leave, I would ask for leave 

with respect to defending ourselves against these claims of misconduct by the receiver while he was receiver . . . .” 
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authorizing fees, the orders would not be void. The mere failure to follow proper procedure will 

not render a judgment void. State ex rel. Latty v. Owens, 907 S.W.2d 484, 485 (Tex. 1995) (per 

curiam); see Ex parte Coffee, 328 S.W.2d 283, 291 (Tex. 1959); Bayoud, 797 S.W.2d at 309 

(“Judgments rendered without observance of statutory requirements which are purely procedural 

are not void, however irregular or erroneous they may be.”). It is undisputed the trial court had 

jurisdiction of the parties and subject matter and it had the capacity to act as a court. See 

Bayoud, 797 S.W.2d at 309 (trial court did not lose jurisdiction even though statutory time limit 

on duration of corporate receivership expired without an application for extension). The absence 

of language reappointing the receiver in the orders granting the postjudgment fee applications 

(even if the omission was erroneous) did not deprive the trial court of jurisdiction it would 

otherwise possess.

Here, the trial court acted within thirty days of denying the motion for new trial to 

authorize the receiver’s fees for postjudgment work. By doing so, the trial court rejected Hill 

III’s argument that the discharge order precluded such fees. Certainly the order granting the first 

postjudgment fee application could have benefitted from language expressly authorizing the 

receiver to continue to participate in the case on appeal, like that in the orders granting the 

second and third postjudgment fee applications. However, in light of the record and the 

objections before the trial court at the time, the fact the trial court did not include such language 

in the order did not deprive it of jurisdiction to authorize the receiver to continue to participate in 

the case on appeal. The trial court did not lose jurisdiction by the mere failure to use more 

precise language in the order granting the first postjudgment fee application. See Bayoud, 797 

S.W.2d at 309.

Under the record in this case, we conclude the trial court had jurisdiction to continue the 

receivership and authorize the receiver to continue to participate in the case while the final 
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judgment is on appeal. Therefore the orders granting the second and third postjudgment fee 

applications are not void.12

2. Assessment of Receiver Fees and Expenses as Costs

Hill III argues that the trial court had no legal basis to assess 100% of the receiver’s 

postjudgment fees against him and that doing so amounted to an impermissible sanction. We 

disagree. Receiver’s fees are considered court costs and are governed by rules regarding the 

award of costs. See TEX. R. CIV. P. 131, 141; Jones v. Strayhorn, 321 S.W.2d 290, 293 (Tex. 

1959); Hodges v. Peden, 634 S.W.2d 8, 12 (Tex. App.—Houston [14th Dist.] 1982, no writ). 

“[W]here a receiver is appointed, taxation of costs of the receivership and the manner of their 

collection are matters entirely within the sound discretion of the trial court.” Theatres of Am., 

Inc. v. State, 577 S.W.2d 542, 547 (Tex. Civ. App.—Tyler 1979, no writ).

Under rule 131, the successful party in a suit shall recover from the other party all costs 

incurred in the suit. TEX. R. CIV. P. 131. Although the trial court has the discretion, for good 

cause shown on the record, to adjudge costs in another manner, TEX. R. CIV. P. 141, the trial 

court here chose not to do so. Hill III has not shown that decision was an abuse of discretion. 

Hill III was not the successful party in the litigation. He opposed the granting of summary 

judgment and lost. We conclude the trial court did not abuse its discretion by assessing 100% of 

the receiver’s postjudgment fees against Hill III. See TEX. R. CIV. P. 131; Jones, 321 S.W.2d at 

293, 295.

We deny the petition for writ of mandamus and overrule Hill III’s third issue.

 12 Hill III argues the orders granting the second and third postjudgment fee applications cannot be justified 

as an exercise of the trial court’s inherent power to enforce its judgment because they materially change substantial 

adjudicated portions of the judgment. Because we conclude the trial court had jurisdiction to issue the orders, we 

need not decide whether the orders were issued as an exercise of the court’s inherent power to enforce the judgment. 

See TEX. R. APP. P. 47.1.
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CONCLUSION

For the reasons discussed above, we deny Hill III’s issues on appeal and in the petition 

for writ of mandamus. Accordingly, we deny the petition for writ of mandamus and affirm the 

trial court’s judgment. 

/ Craig Stoddart/

CRAIG STODDART

JUSTICE

130732F.P05
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Court of Appeals

S

Fifth District of Texas at Dallas

JUDGMENT

ALBERT G. HILL III, Appellant

No. 05-13-00732-CV V.

ALBERT G. HILL JR., AND DANIEL L. 

JACKSON, RECEIVER FOR HILL 3 

INVESTMENTS, LLC, Appellees

On Appeal from the 68th Judicial District 

Court, Dallas County, Texas

Trial Court Cause No. DC-11-04523.

Opinion delivered by Justice Stoddart, 

Justices Fillmore and Whitehill participating.

In accordance with this Court’s opinion of this date, the judgment of the trial court is 

AFFIRMED.

It is ORDERED that appellees Albert G. Hill Jr., and Daniel L. Jackson, Receiver For 

Hill 3 Investments, LLC recover their costs of this appeal from appellant Albert G. Hill III.

Judgment entered this 27th day of March, 2015.